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United States v. Obie

United States District Court, N.D. Georgia, Atlanta Division

December 6, 2018

United States AMERICA
v.
QUINTAVIOUS OBIE (1) and MONIQUE DUBOSE (2)

          ORDER

          ORINDA D. EVANS UNITED STATES DISTRICT JUDGE

          This criminal case is currently before the Court on Magistrate Judge John K. Larkins Ill's Non-Final Report and Recommendation ("November 16th R&R") [Doc. 170] as to Defendant Monique Dubose ("Dubose"), and Defendant Quintavious Obie's ("Obie") Objections to the Report and Recommendation [Doc. 194] in response to Judge Larkins' Final Report and Recommendation ("November 19th R&R") as to Obie [Doc. 177].

         I. LEGAL STANDARD

         In reviewing an R&R, the Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 2 8 U.S.C. § 636(b)(1). Absent objection, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

         II. THE NOVEMBER 16TH R&R AS TO DUBOSE [Doc. 170]

         On October 17, 2018, Dubose filed Defendant's Motion to Suppress Search of Cellular Telephone or Alternatively for a Franks Hearing [Doc. 130] and a Motion to Suppress Statements [Doc. 131] . The Government responded to both motions on October 29, 2018 [Docs. 154, 157] . On November 5, 2018, Dubose filed a reply [Doc. 161] as to only one of her two motions, the Motion to Suppress Search of Cellular Telephone [Doc. 130]. Judge Larkins held an evidentiary hearing on the motions on November 15, 2018. Then, Judge Larkins issued his November 16th R&R [Doc. 170] as to Dubose. In an Order of November 19, 2018, this Court directed the parties to file any and all objections to the R&R no later than November 26, 2018 [Doc. 175] . No objections were filed.

         The November 16th R&R recommends Dubose's Motion to Suppress Search of Cellular Telephone or Alternatively for a Franks Hearing [Doc. 130] be denied and Dubose's Motion to Suppress Statements [Doc. 131] be granted in part and denied in part. Specifically, the R&R recommends Dubose's Motion to Suppress Statements be denied as to Dubose's statement confirming her phone number and granted as to Dubose's statement acknowledging that the seized iPhone matched with her phone number [Doc. 170 at 31-33]. The Court having read and considered the R&R and noting the absence of any objections thereto, the November 16th R&R [Doc. 170] is ADOPTED IN FULL as the opinion and order of the Court. For the reasons set forth in the November 16th R&R, Dubose's Motion to Suppress Search of Cellular Telephone or Alternatively for a Franks Hearing [Doc. 13 0] is DENIED, and Dubose's Motion to Suppress Statements [Doc. 131] is GRANTED IN PART and DENIED IN PART.

         III. OBJECTIONS TO THE NOVEMBER 19TH R&R AS TO OBIE

         A. Factual Background

         On January 9, 2018, a grand jury returned an indictment charging Obie with five counts of sex trafficking [Doc. 13] . Following a detention hearing, Obie was ordered detained pending trial [Doc. 25] . On July 2, 2018, Obie's jury trial was set to begin September 10, 2018 [Doc. 57] . On August 14, 2018, the Government filed the Government's First Motion to Continue Trial [Doc. 68]. As part of its explanation for requesting a continuance, the Government stated that it intended to seek a superseding indictment the following week "to add additional charges" [Id. at 2] . As projected, the Government obtained a First Superseding Indictment [Doc. 72] during the next week, on August 21, 2018. The First Superseding indictment removed one of the five original sex trafficking counts against Obie; added Dubose as a defendant in the case; and added witness tampering charges against Obie and Dubose [Id. ] . Then, on August 24, 2018, Obie filed Defendant's Response to Government's First Motion to Continue Trial [Doc. 78], in which he opposed the Government's request for a lengthy continuance.[1] On September 19, 2018, this Court denied the Government's First Motion to Continue Trial [Doc. 68] and reset trial for October 16, 2018 [Doc. 95] . In an Order of October 3, 2018, this Court reset trial again to October 29, 2018 [Doc. 112] . Then, on October 17, 2018, the Government filed a Second Superseding Indictment [Doc. 139], which added one count of sex trafficking against Obie. On October 20, 2018, the Government filed a Motion to Disqualify Obie's Defense Counsel [Doc. 146]. The motion sought the disqualification of Richard Rice, arguing that his alleged communications with a victim in Obie's case would render him an improper "unsworn witness" at trial [Id.].

         Obie filed his Motion to Dismiss for Prosecutorial Vindict iveness [Doc. 173] on November 16, 2018. In it, Obie argues that all charges against him should be dismissed because the Government "obtained the [superseding indictments] in order to punish Mr. Obie for his exercise of his right to a jury trial and refusal to consent to a continuance" [Id. at 11]. Obie contends the facts of the case give rise to a presumption of vindictiveness and "strongly indicate actual vindictiveness" [Id.]. Specifically, Obie states that because the Government added new charges after he asserted his right to a jury trial and opposed the Government's request to continue trial--having known the factual basis for the new charges well before seeking superseding indictments--the "inexorabl[e]" conclusion is that the Government's superseding indictments were improperly motivated by vindictiveness [Id.1. Judge Larkins' November 19th R&R [Doc. 177] recommends denial of Obie's Motion to Dismiss for Prosecutorial Vindictiveness [Doc. 173] . On November 26, 2018, this Court directed the parties to file any objections to the November 19th R&R no later than November 28, 2018. Obie timely filed Defendant Obie's Objections to the Report and Recommendation [Doc. 177], which are now before the Court for its consideration.

         B. Obie's Objections

         In his objections, Obie argues the November 19th R&R misapplied United States v. Barner, 441 F.3d 1310 (11th Cir. 2006), leading to an inaccurate conclusion that Obie's motion failed to justify a presumption of vindictiveness or make a showing of actual vindictiveness. Obie further contends the November 19th R&R erred in refusing to at least hold a hearing on his motion or require the Government to respond to it to explain its conduct. The Court addresses Obie's objections below.

         Obie objects to the November 19th R&R's finding that he failed to justify a presumption of vindictiveness or demonstrate actual vindictiveness. The November 19th R&R found that Obie failed to show that the Government's conduct gave rise to a presumption of vindictiveness. Citing Barrier, the R&R noted that" [i]n the pretrial setting, there is no presumption of vindictiveness just because the government supersedes an indictment--even multiple times-after a defendant has exercised a legal right" [Doc. 177 at 5] . The November 19th R&R also found that Obie failed to establish actual vindictiveness because he made no causal connection between his exercise of a protected right and the ...


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